JUDGMENT Kailash Prasad Deo, J. - Heard, learned counsels for the appellants, Mr. Arvind Kumar Choudhary assisted by Mr. Rohit Agrawal, Advocates and Mr. Mukesh Kumar, learned Additional Public Prosecutor, appearing for the State. 2. The instant Criminal appeal is directed against the judgment of conviction dated 24.02.2004 and order of sentence dated 25.02.2004, passed by the learned Special Judge-cum-Ist Additional Sessions Judge, Deoghar, in Special Case No. 34 of 2000/ Sessions Case No. 155 of 1998 / 4 of 1999, whereby, all the appellants/accused persons have been convicted for the offence committed and punishable under Sections 147, 326, 325 and 323 read with Section 149 of the Indian Penal Code and awarded rigorous imprisonment for three years and to pay a fine of Rs. 500/- for the offence committed and punishable under Section 326/149 of the Indian Penal Code, in default in payment of fine to undergo further simple imprisonment for three months. The appellants have further been sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 400/- for the offence committed and punishable under Section 325/149 of the Indian Penal Code, in default in payment of fine to undergo further simple imprisonment for three months. The appellants have further been sentenced to undergo rigorous imprisonment for six months for the offence committed and punishable under section 147 of the Indian Penal Code and rigorous imprisonment for six months for the offence committed and punishable under section 323 of the Indian Penal Code. All the sentences are directed to run concurrently. By the same impugned judgment all the appellants/accused persons have been acquitted of the charge under Sections 307/149 of the Indian Penal Code and 3(1)(X) of the S.C./S.T. Act. 3. The prosecution case, is based upon, written report submitted by Lilu Hembrom (P.W.5), before Officer-in-charge of Sarwan Police Station on 10.04.1998 at about 5.30 P.M., wherein, the informant has stated, that he had given she-goat to Murari Mandal on Adh-batai. Murari Mandal asked the informant that his agnates Parmeshwar Mandal and Others are quarreling with him because of she-goat. Upon which informant went to the house of Murari Mandal and while he was taking back his she-goat to his house, the accused persons namely Jagan Mandal, Nanku Mandal and Rajiv Mandal having lathi and Parmeshwar Mandal having tangi and Kesho Mandal surrounded the informant and started abusing the informant with filthy language. Upon which informant went to the house of Murari Mandal and while he was taking back his she-goat to his house, the accused persons namely Jagan Mandal, Nanku Mandal and Rajiv Mandal having lathi and Parmeshwar Mandal having tangi and Kesho Mandal surrounded the informant and started abusing the informant with filthy language. Jagan Mandal and Nanku Mandal assaulted the informant with lathi and Parmeshwar Mandal with an axe, causing bleeding injury on his head. On brawl, brother of the informant Bir Singh Hembrom came for rescue, upon which Jagan Mandal, Nanku Mandal assaulted his brother with lathi on his head causing bleeding injury. The informant has alleged that accused persons have also threatened him with dire consequences. The informant has further stated that there is previous enmity between the parties, for which a case under Section 107 Cr.P.C was already pending in the Deoghar Court. 4. On the basis of the written report submitted by the informant, the Police has registered First Information Report bearing Sarwan P.S. Case No. 35 of 1998, dated 10.04.1998, under Sections 147, 148, 149, 323, 324 of the Indian Penal Code and 3(x), S.C./S.T.(Prevention of Atrocities) Act against five named accused persons. 5. After investigation, the police has submitted charge sheet vide charge sheet no. 17 of 1998, dated 10.04.1998, under Sections 147, 148, 149, 323, 324, 325, 307 of the Indian Penal Code and 3(x), S.C./S.T.(Prevention of Atrocities) Act against five accused persons. 6. The cognizance of the offence has been taken vide order dated 06.06.1998 and the case has been committed to the Court of Sessions vide order dated 04.08.1998. 7. The learned trial Court has framed charge against all the five accused persons, on 28.02.2001, under Sections 147, 307/149 of the Indian Penal Code and 3(x), S.C./S.T.(Prevention of Atrocities) Act, to which the appellants/accused persons have pleaded their innocence and thus, they were put under trial. 8. The prosecution, in order to prove its case, has examined altogether eight witnesses and also exhibited a number of documentary evidence. Murari Mandal has been examined as P.W.1, Gangadhar Hajara has been examined as P.W.2, Bir Singh Hembrom has been examined as P.W.3, Sheo Lal Hansda has been examined as P.W.4, Lilu Hembrom (informant) has been examined as P.W.5, Dr. Birendra Kumar Singh(Medical Officer, in-charge Sarwan primary health centre) has been examined as P.W.6, Dr. Murari Mandal has been examined as P.W.1, Gangadhar Hajara has been examined as P.W.2, Bir Singh Hembrom has been examined as P.W.3, Sheo Lal Hansda has been examined as P.W.4, Lilu Hembrom (informant) has been examined as P.W.5, Dr. Birendra Kumar Singh(Medical Officer, in-charge Sarwan primary health centre) has been examined as P.W.6, Dr. Gopal Prasad Burnwal (child specialist) has been examined as P.W.7 and Rajiv Kumar Singh (investigating officer) has been examined as P.W.8. X-ray report of Lilu Hembrom has been proved and marked as exhibit-1, injury report of Lilu Hembrom has been proved and marked as exhibit-1/1, X-ray report of Bir Singh Hembrom has been proved and marked as exhibit- 1/2, injury report of Bir Singh Hembrom has been proved and marked as exhibit-1/3, X-ray report of Lilu Hembrom has been proved and marked as exhibit-2, X-ray report of Bir Singh Hembrom has been proved and marked as exhibit-2/1, formal First Information Report has been proved and marked as exhibit-3 and endorsement of office in-charge Arun Kumar Roy on written report has been proved and marked as exhibit-4. 9. After closure of the prosecution evidence, the statement of the appellants have been recorded under Section 313 Cr.P.C., on 13.11.2003, to which the appellants have pleaded their innocence and stated that they have been falsely implicated in this case. But no defence witness or document has been examined by the accused/appellants. 10. After hearing learned counsel for the parties and on the basis of material available on record, learned trial Court has passed the impugned judgment of conviction and order of sentence. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred by the appellants before this Hon''ble Court , assailing the impugned judgment of conviction and order of sentence. 11. Heard, learned counsel for the appellants, Mr. Arvind Kumar Choudhary assisted by Mr. Rohit Agrawal, Advocates. Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted, that Dr. Birendra Kumar Singh (P.W.6) has examined Lilu Hembrom(P.W.5) on 10.04.1998 and found injuries on the person of Lilu Hembrom as follows:- (1) Incised wound 2"x1/2" over the left side of forehead. (2) Lacerated wound 1/2"x1/4" over the middle of head. Learned counsel for the appellants has further submitted, that Dr. Birendra Kumar Singh (P.W.6) has examined Lilu Hembrom(P.W.5) on 10.04.1998 and found injuries on the person of Lilu Hembrom as follows:- (1) Incised wound 2"x1/2" over the left side of forehead. (2) Lacerated wound 1/2"x1/4" over the middle of head. (3) Marked diffused swelling and tenderness over the dorsal aspect of left hand. The injury no.1 has been caused by sharp cutting substance, may be tangi, but opinion has been kept reserved for X-Ray, injury no.2 and 3 have been caused by hard and blunt substance such as lathi. X-Ray report and injury report of Lilu Hembrom have been proved and marked as exhibit-1 and 1/1 respectively. Dr. G.P Burnwal, who has examined Lilu Hembrom has issued injury report on 10.04.1998. Learned counsel for the appellants has further submitted, that Dr. Birendra Kumar Singh(P.W.6) has subsequently issued injury report on 21.04.1998, stating injury No.1 as grievous on the basis of injury report issued by Dr. G. P. Burnwal, dated 16.04.1998 but the said, Dr. G. P. Burnwal is not a Radiologist, rather he is child specialist. From perusal of the report of Dr. G. P. Burnwal, it seems to be concocted injury report, as doctor has mentioned injury no. 2 on the basis of X-Ray report of Lilu Hembrom, which is A-P view of skull and found fracture on the left lateral part of skull but the same doctor has mentioned the injury no.3, which is lateral view of skull, there is no evidence of fracture or injury. Thus, the learned counsel for the appellants has submitted, that injury report has not issued by a competent authority, as Dr. G. P. Burnwal is not radiologist rather is a child witness. As such conviction of the appellants under Sections 326/149, 325/149 of the Indian Penal code are not sustainable in the eyes of law. Learned counsel for the appellants has further submitted, that P.W.1 Murari Mandal is interested witness. P.W.2 Gangadhar Hajra though is an eye witness to the occurrence, but has not seen the entire occurrence, as this witness has admitted that, he fled away after seeing the assault and as such, could not say specifically that which appellants have assaulted on which part of the victim Bir Singh Hembrom an injured witness, who is younger brother of informant (P.W.5 Lilu Hembrom). The injury report of Bir Singh Hembrom has been exhibited in this case as exhibit 1/3, all the injuries were found to be simple in nature. Sheo Lal Hansda has been examined as P.W.4, he is a tender witness. Lilu Hembrom informant and also injured witness of the case, has been examined as P.W.5. Dr. Birendra Kumar Singh the medical officer who has examined, Lilu Hembrom and Bir Singh Hembrom has been examined as P,W.6, and proved the injury report along with his signature, which have been marked as exhibit-1 and 1/1. The injury report of Bir Singh Hembrom have been marked as exhibit 1/2 and 1/3. Dr. Gopal Prasad Burnwal, who has given the medical report on the basis of X-Ray report of Lilu Hembrom has been examined as P.W.7 and Sub Inspector Rajeev Kumar Singh, the investigating officer of the case has been examined as P.W.8 and proved the signature of the officer in-charge, which has been marked as exhibit-4. Learned counsel for the appellants has submitted, that P.W.7, Dr. Gopal Prasad Burnwal has categorically stated that, he is not authorized by Government. The X-Ray plate are not before him, nor the same has been given to him either by the Central X-Ray or his agent. The investigating officer Rajeev Kumar Singh, Sub Inspector of the police has been examined as P.W.8. Learned Counsel for the appellants has further submitted, that on the basis of a managed documents, which has been proved and marked as exhibit-2, learned trial court has convicted the appellants under Sections 326/149 and 325/149 of the Indian Penal Code. The documents are not issued by competent authority as admitted by Dr. Gopal Prasad Burnwal (P.W.7). Learned counsel for the appellants has further submitted, that occurrence took place in the year 1998 between the parties and as such, considering the nature and gravity of the offence, this court may modify the impugned judgment of conviction and order of sentence. 12. Heard, learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence has been passed by the learned trial Court on the basis of material available on record. 12. Heard, learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence has been passed by the learned trial Court on the basis of material available on record. Learned counsel for the state has further submitted, that exhibit-2 has been proved and marked in this case, without objection and as such, questioning the same before this appellate Court is not sustainable. Learned counsel of the State has further submitted, that learned trial Court has rightly convicted the appellants under Sections 326, 325, 323, 147 read with 149 of the Indian Penal Code. 13. Heard, learned counsel for the appellants Mr. Arvind Kumar Choudhary assisted by Mr. Rohit Agrawal, Advocates and Mr. Mukesh Kumar, Additional Public Prosecutor appearing for the State and perused the records, i.e First Information Report, framing of the charge, evidence of eight prosecution witnesses, four exhibits of the prosecution side and the statement of the appellants recorded under Section 313 Cr. P. C. as well as impugned judgment of conviction and order of sentence. This court has scrutinized the evidence brought on record. From the perusal of the material available on the record, it appears that informant Lilu Hembrom and his brother Bir Singh Hembrom have been assaulted. The only dispute is with regard to the nature of injury caused upon, Lilu Hembrom. From perusal of exhibit-2, issued by Dr. Gopal Prasad Burnwal and comparing the same with his own evidence as P.W.7, in the court, this Court is of the opinion that, injury no.2 is not legally acceptable to the court as the X-Ray plate was not before Dr. G.P Burnwal (P.W.7) neither this witness was authorized by the Govt. nor competent to issue injury report as he is a child specialist as such, he has given such injury report which creates doubt in the mind of the court. Thus, this Court is of the opinion that, appellants cannot be convicted under Section 326/149 and 325/149 of the Indian Penal Code. They are hereby acquitted of the charge under Sections 326/149 and 325/149 of the Indian Penal Code. Thus, this Court is of the opinion that, appellants cannot be convicted under Section 326/149 and 325/149 of the Indian Penal Code. They are hereby acquitted of the charge under Sections 326/149 and 325/149 of the Indian Penal Code. So far the conviction of the appellants under Sections 323 and 147 are concerned, the same are hereby upheld and affirmed, as the occurrence has taken place, where Lilu Hembrom and his brother Bir Singh Hembrom have been assaulted by these five accused persons by forming unlawful assembly as defined under Section 141 of the Indian Penal Code and as such, the judgment of conviction against the appellants under Sections 323 and 147 of the Indian Penal Code is hereby upheld and affirmed. So far the sentence of rigorous imprisonment for six months is concerned, this Court is of the opinion that, the occurrence took place in 1998 and since then, they have faced the rigour of trial. The injury report has also not been legally brought on record to substantiate that any grievous injury was caused, on the victim rather the injury report of Dr. G.P Burnwal is under cloud as such, the appellants have been acquitted of charge under Sections 326/149 and 325/149 of the Indian Penal Code. Under the aforesaid background, in view of the discussions made above, this Court is hereby modifying the sentence awarded under Sections 323 and 147 of the Indian Penal Code to period already undergone with fine of Rs. 1000/- each to be deposited by the appellants within three months from today. The learned trial Court will issue notice to the appellants Lilu Hembrom as well as Bir Singh Hembrom after deposit of the fine amount and disburse the amount of Rs. 5000/- between them, in the ratio of Lilu Hembrom will be paid a sum of Rs. 3000/- and Bir Singh Hembrom will be paid Rs. 2000/-. In case of default in payment of fine amount as awarded by this Hon''ble Court to the tune of Rs. 1000/- each to the convicts, the appellants will serve a sentence of rigorous imprisonment for three months each under Sections 147 and 323 of the Indian Penal Code. 14. The appellants who are on bail their bail bonds are hereby cancelled to comply the order of this Hon''ble Court. 1000/- each to the convicts, the appellants will serve a sentence of rigorous imprisonment for three months each under Sections 147 and 323 of the Indian Penal Code. 14. The appellants who are on bail their bail bonds are hereby cancelled to comply the order of this Hon''ble Court. The learned trial Court will not take any legal steps against the appellants for three months from today. If the appellants not deposit the fine amount, as directed by this Hon''ble Court necessary legal action can be taken against them to serve out the sentence as stated above. 15. In the result, the instant criminal appeal is hereby partly allowed with modification in conviction and sentence. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.